|Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings|
|BIT||Agreement for the Promotion and Reciprocal Protection of Investments Between the Government of the Arab Republic of Egypt and the Government of the State of Kuwait|
|Claimant or Almasryia||Almasryia For Operating & Maintaining Touristic Construction Co., LLC|
|Ex. [C-] [R-]||Exhibit [Claimant] [Respondent]|
|Ex. [CL-] [RL-]||Legal Exhibit [Claimant] [Respondent]|
|Hearing||Hearing on Respondent’s Preliminary Objections held in Paris, France on 14 December 2018|
|ICSID Convention||Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18, March 1965|
|ICSID or the Centre||International Centre for the Settlement of Investment Disputes|
|Request for Arbitration||Claimant’s Request for Arbitration dated October 10, 2017.|
|Respondent||The State of Kuwait|
|Respondent’s Preliminary Objections||Application of The State of Kuwait Pursuant to Rule 41(5) of the ICSID Arbitration Rules dated September 3, 2018.|
|Statement of Claimant||Claimant’s Observations on Respondent’s 41(5) Objections dated September 30, 2018.|
|Tr. H. [page:line]||Transcript of the hearing|
|VCLT||Vienna Convention on the Law of Treaties|
Professor Ricardo Ramírez Hernández President
Mr. Pascal Dévaud Arbitrator
Professor Dr. Rolf Knieper Arbitrator
ICSID Secretariat :
Ms. Catherine Kettlewell Secretary of the Tribunal
For the Claimant :
Dr. Ezzat Ahmad Mohammed Youssef
Dr. Mohamed Tanweer Mohamed El-Rafie
For the Respondent :
Mr. Charles L. O. Buderi Curtis, Mallet-Prevost, Colt & Mosle LLP
Ms. Gabriela Álvarez Ávila Curtis, Mallet-Prevost, Colt & Mosle LLP
Ms. Luciana Ricart Curtis, Mallet-Prevost, Colt & Mosle LLP
Ms. Mariana Gómez Vallín Curtis, Mallet-Prevost, Colt & Mosle LLP
Mr. Saud Alqemlas Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Ms. Noura Al Roudan Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Ms. Dhuha Alyaseen Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Ms. Dhuha Al-Sayer Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Mr. Talal Alzimami Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Court Reporter :
Ms. Anne-Marie Stallard The Court Reporter Ltd.
Ms. Maha El-Metwally English-Arabic interpreter
Ms. Michele Antaki English-Arabic interpreter
"Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection. The decision of the Tribunal shall be without prejudice to the right of a party to file an objection pursuant to paragraph (1) or to object, in the course of the proceeding, that a claim lacks legal merit." (Emphasis added)
"(1) All time limits, specified in the Convention or the Rules or fixed by a Commission, Tribunal, Committee or the Secretary-General, shall be computed from the date on which the limit is announced in the presence of the parties or their representatives or on which the Secretary-General dispatches the pertinent notification or instrument (which date shall be marked on it). The day of such announcement or dispatch shall be excluded from the calculation.
(2) A time limit shall be satisfied if a notification or instrument dispatched by a party is delivered at the seat of the Centre, or to the Secretary of the competent Commission, Tribunal or Committee that is meeting away from the seat of the Centre, before the close of business on the indicated date or, if that day is a Saturday, a Sunday, a public holiday observed at the place of delivery or a day on which for any reason regular mail delivery is restricted at the place of delivery, then before the close of business on the next subsequent day on which regular mail service is available." (Emphasis added)
"1 - Disputes which arise between a Contracting State and an investor belonging to the other Contracting State, in relation to an investment in the territory of the first State which returns to the latter, shall be settled, as far as is possible, by amicable means.
2- If that dispute cannot be settled within six months of the date on which either of the two parties to the dispute requested an amicable settlement by notifying the other party in writing, then the dispute shall be referred for resolution by one of the following means, to be chosen by the investor who is a party to the dispute.21 (Emphasis added)
"...the claimant (the second party) purchased 5% of the Kuwaiti land owned by the first party for an amount of $20 million in order to establish with the first and third party residential and touristic communities and to invest in this land to establish such constructions and touristic resorts and to obtain 10% of all profits gained from land and constructions... the Kuwaiti government prevented the claimant from taking ownership of the land, and seized and expropriated it for public benefit and did not hand over or compensate the claimant for the value of its share."35 (Emphasis added).
"1 - (a) Investments made by investors belonging to either of the two Contracting States in the territory of the other Contracting State shall not be subject to nationalisation, expropriation, or confiscation, nor shall they be subject, directly or indirectly, to measures whose effect is equivalent to nationalisation, expropriation, or confiscation (referred to collectively hereinafter as "expropriation") by the other Contracting State, except for a public purpose relating to a national interest of that Contracting State, and then in return for compensation that is immediate, sufficient and effective, and on the condition that those measures are taken on a non-discriminatory basis, and in accordance with legal procedures in general usage.
2- "Expropriation" also includes cases when a Contracting State expropriates the assets of a company or enterprise which was set up or founded in accordance with the laws in force in its territory, in which an investor belonging to the other Contracting State has a majority or important share, through owning stocks, shares, bonds, rights, or other interests.
3- The term "expropriation" also includes any interference or regulatory procedures carried out by a Contracting State such as incorporating or restricting the investment, or the forced sale of all or part of the investment, or any other similar procedures having the same effect of seizing the property or expropriating it, and arising from which procedures, the investor is in actuality dispossessed of his property, or his majority or substantial interest in his investment, or suffers loss or damage to the economic value of the investment."
"Claimants must have held a property right of which they have been deprived. This follows from the ordinary meaning of the term. The Oxford English Dictionary defines 'expropriate’ as '(of the state or an authority) take (property) from its owner for public use or benefit’/'dispossess (someone) of property’"... The Tribunal in Waste Management II made the same point when it held that the object of expropriation is the property of the claimant... In order to determine whether an investor/claimant holds property or assets capable of constituting an investment it is necessary in the first place to refer to host State law. Public international law does not create property rights. Rather, it accords certain protections to property rights created according to municipal law."37 (Emphasis added)
"The non-registration shall result in that the said rights shall not be created, transferred, changed or cancelled among the concerned persons or others."44
Arbitrators’ fees and expenses
|Prof. Ricardo Ramírez Hernández||US$ 95,218.60|
|Mr. Pascal Dévaud||US$ 112,858.1147|
|Prof. Dr. Rolf Knieper||US$ 38,822.22|
|ICSID’s administrative fees||US$ 84,000.00|
|Direct expenses (estimated)48||US$ 22,460.27|
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